Tag: Trump

Trump’s Blocking Twitter Followers Unconstitutional Says Court

On Wednesday, a federal court for the Southern District of New York held that President Trump violated the First Amendment when he and his Social Media Director Daniel Scavino blocked users on Twitter because they were critical of the President and/or his policies via the @RealDonaldTrump account. The story caught my attention—not only as a citizen who wants a president to both respect the Constitution and have the backbone to endure a little criticism—but also because I wondered if the court’s opinion might state or imply that the Twitter platform as a whole is a public forum vis-a-vis the First Amendment. The short answer is No.

Readers may remember when “digital rights” groups swooned over the opinion in Packingham v. North Carolina, finding the State had overreached in barring internet access to registered sex-offenders, and in which Justice Kennedy described the internet as one of the “most important places for the exchange of views.” The digerati even speculated that the opinion in Packingham might imply that Section 512(i) of the DMCA, requiring account termination for repeat copyright infringement, could be held unconstitutional.

The major internet platforms have long overstated their obligation to the First Amendment on behalf of users—usually citing our free speech as the reason to keep their digits off all user-uploaded content, even if the content is illegal or otherwise harmful. This posture is based on the “neutral platform” principle, which has less to to with free speech and more to do with avoiding corporate liability for actionable uses of their platforms.

For several years, the public generally bought into the “neutral platform” concept until the Russian meddling story broke, and then everyone remembered that, in fact, social media platforms are private companies free to exercise editorial control over content without implicating the First Amendment. And in a recent twist, The Guardian reports that Facebook is seeking to have a lawsuit dismissed on the grounds that, get this, it’s a publisher with the right to edit content. Stay tuned on that one.

Still, the question remains, from our perspective as users, as to exactly when a social media platform constitutes a public forum in a constitutional sense and when it doesn’t; and this recent decision involving the @RealDonaldTrump Twitter account is among the first opinions to provide some answers.

Judge Naomi Reice Buchwald awarded the plaintiffs declaratory relief stating that President Trump’s blocking them from following his Twitter account was an abridgment of their First Amendment rights—but only under a very narrow analysis in which the @RealDonaldTrump account constitutes a public forum. In this case, the forum arises from a combination of two sets of facts: first, that the once-personal account of Donald Trump is now used to make official statements by the President of the United States; and second, that only a follower of a Twitter account can interact directly with the account-holder’s tweets by composing tweets that are then visible to all other users in that specific context. As stated in the opinion …

“The audience for a reply extends more broadly than the sender of the tweet being replied to, and blocking restricts the ability of a blocked user to speak to that audience.”

As I said, it’s a very narrow standard defining this particular account as a public forum, and the opinion even calls the injury done by blocking di minimis but also states that di minimis abridgment of speech is still unconstitutional. The defense’s arguments that a blocked user can still read the Twitter feed of @RealDonaldTrump and remains free to criticize the president in any other manner were not persuasive that a First Amendment violation did not exist.

Judge Buchwald also noted in her opinion that a public official who uses social media for purely personal communications would be free to block users without implicating the First Amendment. Public officials are still entitled to private lives, including the right to ignore or avoid critics or haters—even on a publicly-visible, but privately-used, social media feed.

The defense also sought to argue a separation challenge—that the court does not have jurisdiction in this case over the Executive, but countering this, Judge Buchwald states that an order to unblock these users does not, “direct the President to execute the laws in a certain way, nor would it mandate that he pursue any substantive policy ends.” Instead, the court affirms that the President must comply with the Constitution he took an oath to protect and defend.

That said, in order to steer a wide path away from any separation conflicts, Judge Buchwald stopped short of issuing an injunction (an order) to unblock the users and instead issued a declaratory judgment (more like a recommendation) that the President has violated the First Amendment. According to Newsweek yesterday, Trump has so far defied the court, and users remain blocked.

Assuming the Republic survives this mess and social media remains something we all use in the foreseeable future, this case may prove instructive as a first step in defining when use of these platforms legitimately implicate the First Amendment. I suspect the answers will continue to be narrow—that it will not suffice return to the over-broad assumption that platforms are merely neutral hosts of protected speech because it seems clear that such absolutes do not apply.

This has implications for cyber policy going forward. As many colleagues have repeated—and are only now being heard—the pecuniary interests of web platforms trained society to obliterate boundaries like consent and decency—to say nothing of truth. And there is an extent to which the current President’s apparently cult-like use of Twitter to speak only to admirers is a byproduct of that same folly. Yes, in this instance, I believe the President should unblock those users in deference to the court’s opinion; but in general we should also should take note that the internet industry’s chronic appeals to our free speech as their liability defense is as legally untenable as it is morally objectionable.

Disruption achieved.  What now?

Returning to the generalization that the internet is the “best thing ever to happen to democracy,” I have to ask this:  if the proof of the pudding is in the eating, how do we like the soufflé so far?  Admittedly, the unprecedented scope of the Women’s March on January 21 would not have been possible without social media; but at the same time, I very much doubt that a candidate in the style of Donald Trump could have become president without social media, so I guess we’re going to have to live with that dichotomy.

Setting aside Trump’s policy agenda—to the extent that it is coherent—what I believe he represents above all is a vote of no confidence in the American system itself.  And to be honest, I believe Bernie Sanders’s campaign represented this for many people as well–albeit in a very different manner.  But what these two radically divergent populists had in common was a message that the middle class is getting hammered because the system has failed.  It’s why the Sanders-to-Trump voter is not the contradiction it might seem; but I do find it at least worth pondering that the election of 2016 was very much A Tale of Two Angry Old Men.  Not that I discount Hillary Clinton by any means, but it seems as though the venn diagram that combines many swing votes in the electorate who would never vote for Hillary with those who reluctantly voted for Hillary shared that common complaint that the establishment itself is the problem.

And now that we are watching Trump’s approach to “shaking up Washington” play out in an exhausting whirlwind of political heterodoxy, I can’t help but think about that youthful and ebullient mantra of Silicon Valley that preaches Disrupt Everything. Citizens across the political spectrum, fed up with the status quo on a wide range of social, political, and economic issues, either actively or passively endorsed this disrupt zeitgeist. Remember the old Facebook motto Move fast and break things that was echoed by the VCs and creators of tech startups?  Could that not also serve as the headline for Trump’s first weeks in the White House?

The cacophony of political theater and real policy proposals of the new administration has certainly been breathtaking, but it is also familiar territory to those of us who spend time scrutinizing the PR and policy aims of the internet industry. The disestablishment playbook of Bannon seems to share, one might say, substantial similarity with the disestablishment playbook of Google when that company opposes legal regimes like copyright law, privacy restrictions, anti-trust regulation, or even the notion of statehood itself.

Like the sledgehammer Trump wants to take to all regulation in order to supposedly “get business flowing again,” Google & Friends have repeated almost the same message to sell the idea that legal regimes like copyright are anachronisms standing in the way of innovation. The sleight of hand works well because the goal is vague.  That word innovation is no more clearly defined than the word great in Trump’s campaign slogan. But the spirit of disruption insists that we not discuss the nagging details about where we might be headed. It says that we must simply break things right away and have faith that benefits are sure to follow.

And I do literally mean faith.  Because an enthusiasm for mass disruption seems to come from a deep well of magical thinking. Whether this means an overtly theocratic agenda a la Bannon or an overtly technocratic one a la Google, both visions seem to share this one underlying message:  that many foundations of the American Republic (i.e. all things mainstream) are standing in the way of a bright future. It feels as though we are locking in a dismal choice between the catastrophe of a new, theocratic global order or the uncertainty of a quasi-democratic, technological, “leisure” society. Or perhaps some bizarre, dystopian version of the two.  Meanwhile, the AI technologists continue their race to bring about the singularity with the same determinist zeal that Steve Bannon exhibits about the prospect of a war with China. Are we truly that eager for self-annihilation? Again?  No wonder a reported 50% of these same technologists have invested millions on their survivalist backup plans.

Blind faith in information technology to preserve democratic principles is just that:  blind.  As I suggested in an older post, because social media has divvied us up according to our brand of outrage, it is helping to hollow out the political center, leaving a vacuum for autocrats (or technocrats?) to fill. It was just a few years ago, when the Snowden story broke, and everyone became all leak-happy, that I criticized my progressive friends for looking in every direction for conspiracies and for putting too much faith in the illusion of transparency afforded by digital technologies.

We forget at our peril how fragile the American deal really is—that it is nothing more than an idea we mutually agree not to destroy, no matter how much we disagree on specific issues.  As I wrote in response to this 360-degree conspiracy view, if we completely lose faith in all functions of government, it means we’ve lost faith in each other, which is the beginning of the end.

Michael Idov, writing for New York Magazine, provides a glimpse into his experiences living and working in Russia as a cautionary tale about what happens when that very fragile agreement does not exist—when trust itself is obliterated. In a description that reminds me of at least cybernetic America over the last several years, Idov writes:

“Russian life, I soon found out, was marked less by fear than by cynicism: the all-pervasive idea that no institution is to be trusted, because no institution is bigger than the avarice of the person in charge. This cynicism, coupled with endless conspiracy theories about everything, was at its core defensive (it’s hard to be disappointed if you expect the worst). But it amounted to defeatism.”

And that’s the underlying message being delivered 140 characters at a time from the Oval Office today—that not one institution can be trusted over the word of a single individual. It is a defeatist and dangerous message, but not one that was written by Donald Trump so much as it was exploited by him. We wrote the narrative ourselves. Feeling let down by the system, we went looking for saviors instead of leaders.

The detrimental effect of social media, feeding the illusion that this technology fosters real transparency, cannot be overstated. The very significant phenomenon that some citizens sincerely believe that a presidential tweet is more honest and informative than the investigative work of a veteran journalist may seem mind-boggling, but it was an inevitable result of disrupting everything. And it is certainly not only Trump’s supporters who’ve bought into this idea that we can all be our own news sources now because the “mainstream” cannot be trusted. To the contrary, every day I see some friend on Facebook shake a head at the White House calling a verifiable fact “fake news,” but in the next instant, share some misleading headline from a questionable source.

We usually talk about the United States in terms of strength and rarely in terms of its fragility.  If that sounds “weak” to some, a reading of the Framers’ own words will show that they understood exactly how fragile the Republic is—that the moment it ceases to be a statesman’s debate about common purpose, we’re toast. But honest debate cannot occur when we have to spend so much time disputing or proving the facts themselves. Twenty years ago, we argued about what to do next, but not nearly so much about what had already happened.

As a general analysis, it is extremely hard to believe that we were not better off with a little less “information” and a little less “transparency.”  Because there is simply no denying the evidence that millions of us—right, left, and center—are operating with our own sets of facts and “alternative facts.” At the same time, it is also questionable whether or not any bi-partisan cooperation could ever happen under the gaze of constant public scrutiny.

It’s a little late now, of course. With the Executive adopting an authoritarian tone, and a party-line vote like we saw in the confirmation of a patently unqualified Secretary of Education, we’ve clearly crossed some threshold in the realm of sincere debate that is neither liberal nor conservative.  But this is what comes from an underlying loss of faith in the system itself and the chaos of the tech-enabled “direct democracy” that is, in many ways, an antidote to corruption but which is also highly vulnerable to corruption itself.

So, mission accomplished. We’re disrupted. “Big League.”  What’s next?

Photo by michaklootwijk

Defending Copyright in the Context of Trump

photo by DevonYu

Well, here we go.  I’ve been waiting for this shoe to drop, and it looks like Josh Tabish, campaigns director for Vancouver-based OpenMedia, has decided to be among the first to throw a loafer. In an editorial for Wired, he warns that “the copyright barons” are coming now that Trump is in the White House.

It has a been a challenge, to say the least, to try to disabuse people of the notion that contemporary copyright enforcement really can coexist with a free and open internet and not stifle free speech. And that was while Obama was president—a left-of-center moderate who was very close with Google. But ever since Trump won, I’ve been waiting for the same anti-copyright narrative to dial the volume up to eleven because now we have a ballgame.  Stand by for a litany of articles and blogs under the theme:  See! All it takes is a draconian, right-wing president, and the copyright industry will get what they want and destroy the freedom-loving internet!!!!

So, let’s clarify one thing, in case it hasn’t been obvious so far.  I neither like nor trust Donald Trump. I think he’s probably unhinged and that his agenda, opaque as it seems, may well pose a legitimate threat to the foundations of the United States.  And certainly, there are bigger issues to worry about at the moment than copyright law. In fact, this is always true, which is one reason the IP Subcommittee of the House Judiciary used to be a legislative backwater gig that nobody really noticed. But now that internet giants have convinced millions of people around the world that copyright enforcement in cyberspace is tantamount to stifling everyone’s speech, copyright remains in the foreground of digital-age issues and, by association, it will be swept up in the broader narrative of whether or not the Republic itself is going to withstand the new administration’s brand of heterodoxy.

In response to a letter by The Copyright Alliance asking the president to support copyright law, Tabish cobbled together the standard narrative that a) copyright law is already too strong; and b) making it any stronger can only result in some form of censorship online.  He trots out all the usual talking-points, including favorite hits like DMCA takedown is chronically abusive, no enforcement regime can mitigate piracy anyway, and beware the hidden IP agenda of trade deals.  None of these assertions is sound—I’ve written extensively on all of them—and certainly none can be understood from a sentence or two in a short article.  But I imagine we’ll be hearing a lot more of this “beware copyright” message now that the age of Trump is upon us.  And I could not disagree with this premise more. Perhaps now more than ever.

Protecting Individual Rights

One of the reasons I defend copyright is that it is an individual right.  IP is in fact the very first mention of an individual right in the Constitution, and copyright was among the few rights an American could exercise, even before he/she had other rights.  Frederick Douglass registered his Narrative of the Life of Frederick Douglass, an American Slave in a Massachusetts Federal Court in 1845.  At a time when he and his fellow Africans were literally considered property by half the country—and were none too welcome by the other half—Douglass could legally declare the work of his own genius as his property.

I happen to think that’s significant and believe people should recognize its significance.  Today, the empowerment of copyright is almost certainly a core component in the career of your favorite activist, author, artist, or journalist. Or to put it another way, if you watched the inauguration concert, that’s a pretty good glimpse of what art looks like in certain countries without copyright laws. Kinda meh, right?

Copyright Is Non-Partisan

To be frank, most governance is non-partisan, and it’s unfortunate that the theater of mass media has increased our capacity to politicize even relatively neutral policy.  But that’s another discussion.  Copyright law is grounded in the earliest principles of the new nation, it has been wildly successful on balance, and it yields some of our favorite products. There’s a reason copyright historically enjoys strong bi-partisan support and stands apart from other, far more contentious issues.  If nothing else, amid the chaos and angst we’re now enduring on so many policy matters, copyright is actually kind of a nice legislative oasis where Republicans and Democrats can, and should, be friends.

Realistic Proposals to Amend Copyright Law are Not “Maximalist”

Despite the chronic repetition of the pejorative maximalist, and the declaration that rights holders are so eager to enforce copyright online that they’re willing to censor the web, this simply does not square with any of the real policy being discussed. Most of it is rather nuanced, and although some of the changes could cost Google or Facebook some of their not-so-hard-earned cash, it’s a stretch to imply that any of it can really affect the day-to-day use of the internet by most of us—least of all any discussion or sharing of substantive material that can arguably implicate the First Amendment. Naturally, these details and developments will be the subject of future posts.

Focus on the Real Concerns

Ultimately, if the real worry is about the correspondence of the internet and civil rights, remember that it’s not the creative copyright owners—least of all the independent artists out there getting clobbered—who own big web platforms. If you have real concerns about online censorship in the age of Trump, don’t follow the publishers, record labels, and movie studios, follow the evolving relationship between the administration and the owners of the web platforms. I’m not accusing those providers of anything here, but that just seems like common sense, no?

The simple reality is that every industry, regardless of internal political views, has to figure out how to work with the administration and the Congress we have.  That includes the institutions represented by The Copyright Alliance, and it includes those represented by the Internet Association. The Copyright Alliance letter is a lot like all the other representatives who sent missives to the new administration from every industry in the country. It’s SOP and largely symbolic.

Politically motivated communicators like Tabish should recognize that his empowerment  is not sustained by “free” internet conduits alone.  That empowerment is financial and requires investment by organizations like Wired where his OpEd was published. These entities depend on copyright law to protect their investments, and this is no time for any professional author of anything to be shooting himself in the foot.  Expect this rhetoric to get louder in the coming months and years, but that won’t make it more true.